Chapman Law Review
“SURPLUS HUMANITY” AND THE MARGINS OF LEGALITY: SLUMS, SLUMDOGS, AND ACCUMULATION BY DISPOSSESSION
Copyright (c) 2010 Chapman Law Review; Tayyab Mahmud
Marooned on the outskirts of the law, more than one billion people worldwide live in urban slums and squatter settlements, mostly in the global South. Law, extra-legality, and illegality commingle in urban slums to produce spaces and subjects at the margins of legal orders and formal economies. Three enduring and inter-related features of capitalism–accumulation by dispossession, a reserve army of labor, and an informal sector of the economy–produce and sustain urban slums. The genesis and persistence of slums and slum-dwellers testify to the iron fist of the state working in concert with the hidden hand of the market in the service of accumulation of capital. Over the last thirty years, neoliberal restructuring of economies and reordering of the responsibilities of states have accentuated this process. As a result, slums in the global South have grown exponentially. An examination of public policy and pronouncements of the judiciary in India, as they related to slums and slum-dwellers, calls into question traditional understandings of the law, citizenship, and responsibilities of the state. Mainstream remedial prescriptions for housing for the urban poor increasingly rely on market forces, falling woefully short of their goal, and often accentuating the problem. The incipient right to the city provides a productive framework to re-imagine the concept of citizenship, and to guide public policy and popular action to ensure adequate housing with dignity for the urban poor and marginalized.
One’s ideological perspective is likely to be shaped by one’s housing status.
[T]here is a politics of space because space is political.
From Cabrini-Green in Chicago to the Mau Forest in Kenya, the housing of the poor is threatened by predatory forces unleashed by global capitalism in its neoliberal incarnation. Formal housing markets in the global South rarely supply more than twenty percent of new housing needs, turning people to self-built shanties, informal rentals, pirate subdivisions, or the streets. The population of slums and shantytowns on the urban peripheries often outnumbers that of the city, leading some to suggest that “[t]hese compounds are called ‘peri-urban’ but in reality, it is the city proper that is peripheral.” Planning experts warn that if this trend continues, “we will have only slums and no cities.” Urban slums are seen as warehouses of “surplus humanity,” and slum-dwellers as a “surplus population.” A global study finds that “[t]he primary direction of both national and international interventions during the last twenty years has actually increased urban poverty and slums.” In a world where “2.7 billion struggle to survive on less than two dollars per day,” urban poverty may well be the “most significant, and politically explosive, problem of the . . . century.”
The ongoing global recession and the popularity of the Academy Award winning film Slumdog Millionaire furnish a unique opportunity to reexamine the question of slums. The 2007-2009 deep recession and the global financial crisis are lifting the fog of neoliberal market ideologies that have dominated global and national public policies for over a generation. This has opened up the possibilities for clear-eyed analyses of how market forces and the law come together to produce questionable distributions of gain and pain. Slums and urban poverty are ripe for such an analysis.
Set in Dharavi, the infamous slum of Mumbai, Slumdog Millionaire is an acerbic snapshot of law and illegality tangled in a brutal drama of power and resistance in the life of slum-dwellers. We see an urban space that radically departs from the original meaning of “city,”–which is derived from civ’tade, civitat-em, and civitas, and “its primary sense was therefore ‘citizenship’; thence concretely ‘the body of citizens, the community.”’ Neither does the modern “public sphere,” saturated by legality, contemplate a slum like Dharavi. Rather, slums emerge as liminal spaces where law, extra-legality, and illegality are braided to produce the other side of universality–“moral and legal no man’s land, where universality finds its spatial limits.”
This article examines the production and persistence of urban slums in order to explore and evaluate remedial strategies that could ensure adequate housing for the urban poor. This inquiry is informed by the spatial turn in social inquiry that deems spatial factors crucial to social phenomena, and the renewed interest in urban sociology and “the city.” It takes cognizance of the mutually constitutive roles of law and space, and of the fact that “[w]e live in a time of porous legality or of legal porosity, multiple networks of legal orders forcing us to constant transitions and trespassings.” First, the article presents a picture of Dharavi to underscore the complexity and gravity of the problem of urban slums. Second, it articulates a theoretical framework to argue that urban slums are produced by three inter-linked and enduring features of capitalism that have been accentuated by neoliberalism: accumulation by dis-possession, the labor reserve army, and an informal sector of the economy. Third, using the history of slums in India as a case study, it applies this framework to demonstrate how colonial stratagems, misguided post-colonial development policies, and mandates of neoliberalism have produced and sustained slums in the global South. Fourth, it shows how material and discursive changes spawned by neoliberalism transformed India’s judiciary’s response to the problem of slums and slum-dwellers from humane treatment to hostility. Fifth, it evaluates alternative models for the eradication of urban slums in the global South, and finds the “state as developer” model to be most promising. Finally, it argues that the incipient right to the city provides a productive framework to reimagine the concept of citizenship, and to guide public policy and popular action to ensure adequate housing with dignity for the urban poor and the marginalized.
I. Dharavi: Maximum Slum in Maximum City
In India, the number of people living in slums grew approximately twenty-five percent in the last decade. In Mumbai, over twenty million people cram into 169 square miles, with population density exceeding one million per square mile in some parts of the city. With twelve million squatters and tenement-dwellers, Mumbai is also the global capital of slum-dwelling. While real estate prices in Mumbai compete with those of Manhattan, every second person in Mumbai lives in slums, which collectively occupy just six percent of all the land in the city. In Mumbai, a typical tenement chawl–which makes up seventy-five percent of the city’s formal housing stock–is a dilapidated, one-room rental dwelling that on average crams a household of six people into fifteen square meters, with a latrine usually shared by six families. Pavement and sidewalk dwellers in Mumbai reach approximately one million. Of these, seventy percent have been in the city for at least six years, and one-third have been evicted from a chawl or a slum. While Mumbai’s estimated annual housing deficit of 45,000 units translates into a corresponding increase in slum dwellings, 400,000 units lie empty because owners loath the mandated regime of fixed rents and the resulting propensity of tenants to become permanent occupiers. Homelessness and slum growth in Mumbai is directly related to job losses associated with industrial restructuring. In 1921, textile mills hired 16.2% of the males and 9.5% of the females of the city’s population. In 1931, the Census Commissioner stated that “‘[s]ave for its textile manufacture’, . . . ‘Bombay has really little claim to be called an industrial city. . . .’.” Until 1980, 250,000 textile mill workers lived in Mumbai; today the number has fallen below 30,000. This is part of a broader contraction of the formal sector of the economy that has forced the urban poor to fend for themselves in the so-called informal sector.
Life in Dharavi demonstrates that, for the urban poor, housing is a verb. Dharavi, a 175-hector (0.67 square miles) maze of dark alleys and corrugated shacks, compacts 18,000 people per acre into 10-by-15 foot rooms stacked on top of one another. Here, slum-dwellers juggle housing cost, tenure security, quality of shelter, distance from work, and personal safety. Even pavement-dwelling, much less an extra-legal shack, is not free; regular fees have to paid to the police, crime syndicates, or both. Furthermore, squatters are required to pay sizable amounts of money as bribes to the police, politicians, or criminal gangs to gain access to the sites, and continue to pay informal “rent” in money, loyalty, and votes. The unavoidable costs of an un-serviced location add to the bill. Slum-dwellers who have been in the city since before 1995 pay a monthly fee to the city for a “photo-pass”–an identity card with the photograph of the head of the household on it. While holders assume that this pass gives them a right of permanent residency, the small print on the back side states that the holder is an encroacher who has to pay a monthly fine.
In Dharavi and other slums of Mumbai, death rates are fifty percent higher than in adjoining rural areas, with forty percent of the mortality being a product of infections and parasitic diseases due to contaminated water and inadequate sanitation. “Breathing the air in [Dharavi] now is the equivalent to smoking two-and-a-half packs of cigarettes a day.” Clean water, sanitation, and toilets are rare commodities, which puts special burdens on women. The few public toilets run by the municipal corporation charge for each use. A study of twenty-two slums in India found nine with no latrines at all; in another ten, only nineteen served 102,000 people.
Dharavi is also a hub of small-scale industries, with an estimated annual turnover between $50 and $100 million. Against all odds, Dharavi has developed into a “kind of self-sufficient, self-sustaining ‘village,”’ one with a “vibrant community and economy,” which “has achieved a unique informal ‘self-help’ urban development over the years, without any external aid.” While bereft of adequate housing, the slum-dwellers have established “close to 5000 industrial units, producing textiles, pottery and leather, and performing services like recycling, printing, and steel fabrication.” The economic activity in Dharavi is “decentralized, human scale, home-based, low-tech and labor-intensive . . . pedestrianized, community-centric, and network-based . . . . A simplistic re-zoning and segregating of these activities . . . would certainly hurt this very unique urban form.”
Polluting, toxic, and often illegal industries find Dharavi, where “Darwin beats Keynes,” attractive. Sweatshops profitably mine cheap labor under the radar of regulatory oversight. Writers analogize Dante’s Inferno to portray the struggle for survival in slums where poverty, filth, crime, and marginalization stalk the daily life of human beings. Slum-dwellers trade away physical security and public health for minimal shelter, and suffer environmental degradation including filthy water, polluted air, and toxic industrial waste. They contend with the “garbage dump syndrome,” which is “a concentration of toxic industrial activities such as metal plating, dyeing, rendering, tanning, battery recycling, casting, vehicle repair, [and] chemical manufacture.” Dharavi, like most slums, is located in a disaster-vulnerable, ecologically fragile area, so that even a heavy rain can wipe out shelters. An omnipresent threat is fire, accidental or as the result of “hot demolition”–arson used by landowners to clear out squatters.
Recently, the Mumbai city government approved a plan, styled “Vision Mumbai,” to create a “world-class city” by 2013. Dharavi, where the land occupied by the slum is estimated to be worth $2 billion, is a particular target of this plan. Demolitions by bulldozers, supervised by the police and with little notice to the residents, is the modus operandi. The dwelling of the lead child-actor in Slumdog Millionaire proved not to be immune to demolition. Besides being a violation of many international conventions and covenants to which India is a party, these actions betray class divides, and “the constitutive and mutually defining relations between corporeality and the metropolis.” As one Dharavi resident put it:
Why wreck the homes and lives of people who have built the city and lived in it for decades? . . . Because from your luxury high-rise apartment you don’t want the humiliation of India’s poor in your line of vision as you make money and succeed. Forcing them out is the only option. You simply can’t wish them away.
An architect claims, “[t]here’s very little vision with this plan. They’re more like hallucinations.” A Dharavi resident asks: “Development for whom? The government’s idea of development doesn’t include us. I’ve seen the plans. Wonderful. No room at all for ugly poor people.” A companion plan adopted by the Maharashtra state government proposes to resettle slum-dwellers of Dharavi into 225 square foot flats per family, if the slum-dweller’s name appeared on the voters’ list in 1995 and he or she was an actual occupant of the dwelling. Together, Lehman Brothers and HDIL, one of the largest property developers in India, were awarded a contract to implement the plan, but they abandoned it citing a liquidity crunch and lack of clarity of policy. Many earlier plans met a similar fate. In all, slum upgrading plans in Mumbai promised to provide relief to three million people, but the results remain dismal. An expert review concluded that “the scheme for slum upgrading had fallen well short of expectations and only nine percent of recipients belonged to low-income groups . . . .” In the meantime, the global real estate price-escalation has also reached Dharavi, making even the slum beyond the reach of the destitute. A Dharavi real estate broker explains:
Ten years ago, poor people were my only clients and huts my only properties . . . . My only line was: ‘Poor people can afford it.’ Now I sell to businessmen, investors and speculators. I tell them, ‘This place is a commercial center. It’s slap in the middle of the city. Its [sic] development is approved. It’s a sure thing! It’s golden! Get in now!’
This picture of Dharavi in Mumbai suggests that most cities of the global South are less made of glass and steel soaring toward the sky, than of crude brick, straw, scrap wood, and plastic in the midst of squalor, pollution, and excrement. It also suggests that Dharavi, like other urban slums of the global South, is not a space invested with formal legality. Dharavi emerges as a liminal zone of a regulatory vacuum, where predatory entrepreneurs, corrupt politicians, and state functionaries operate unfettered by law or public scrutiny.
II. Slums, Cities, and Capitalism
A. Accumulation by Dispossession and “Surplus Humanity”
Slum-dwellers have been characterized as “outcast proletariat.” They are the “disincorporated” and “un-incorporatable” of capitalism. They stand “condemned to the world of the excluded, the redundant, the dispensable, having nothing to lose, not even the chains of wage-slavery. . . . [They are] the shadowy figures of the rejected, the marginal, the leftovers of capital’s arising, the wreckage and debris . . . .” All this renders them “structurally and biologically redundant to global accumulation and the corporate matrix.” Any productive inquiry of slums and slum-dwellers must take account of the conditions of their production. Three interlinked historical features of capitalism furnish the contours of this process: accumulation by dispossession, the reserve army of labor, and the informal economy.
David Harvey coined the term accumulation by dispossession to signify that accumulation facilitated by legal and extra-legal non-economic means is an enduring condition of capitalism, rather than just its historical precondition. The construct signals that markets always rely on non-market forces, particularly legal orders and extra-legality, to disproportionately allocate power and resources to owners of capital. The concept builds on that of primitive accumulation–appropriation of value by force–seen as the pre-history of capitalism and critical to the development of free labor and free markets. As a prerequisite to the desired positioning of bodies and spaces, legal and extra-legal coercion made capital accumulation possible. Coercion triggered the genesis of capitalism–availability of “free” labor with no other means of livelihood except their labor to be sold in a nascent “free” labor market, and the availability of capital to be deployed in the incipient manufacturing industries. Historically, the process turned on “ex-novo separation between producers and means of production.” The key issue here involves the “conditions, circumstances and contexts in which this separation is enforced.” Contrary to the mythologies of classical economics, this is a realm outside the market governed by pure economic laws–a zone where this separation is effectuated through direct extra-economic forces residing in the coercive power of the state and the law. Two domains of extra-economic power were critical to this process: coercive laws that forced subsistence producers into the “free” wage labor market, and colonial plunder that made capital available for investment.
Colonialism, facilitated by an elaborate reordering of international law, filled the coffers of the fledgling mercantile class of Europe and generated the financial resources to engage the “freed” labor in production governed by profit maximization. Besides direct plunder of resources in the colonies, agricultural lands in the Americas and plantation colonies in the Caribbean were the “ghost acres” that relieved output pressures and threats of diminishing returns that confronted European agriculture. The genesis of capitalism in un-free labor is reflected in the fact that the word capital first came into vogue in the era of capital-intensive but slave-hungry Antillean sugar plantations. The Enclosure Acts and Game Laws in England are examples of coercive use of law to dispossess rural farmers, hunters, and other subsistence producers, forcing them to seek a livelihood in the “free” wage market. Primitive accumulation thus entailed two interlinked processes: direct expropriation of people’s means of providing for themselves, and forcing people into wage labor.
Canonical critical political economy had relegated primitive accumulation to the pre-history of capitalism. However, later scholarship on endemic crises of capitalism, the political economy of growth, dependency theory, world systems theory, accumulation on a world scale, and articulation of modes of production, establishes that primitive accumulation is “a basic ontological condition for capitalist production, rather than just a historical precondition.” As a result, “production of value that enters into the circuits of capitalist accumulation through parasitization of formally non-capitalist processes is a deeply embedded feature of capitalism.” These interventions underscore the continuing role of coercive political forces in underwriting the purportedly extra-political realm of the market. They also alert us that capitalism, since its origins is a global phenomenon that often co-opts rather than displaces non-capitalist modes of production, and results in uneven development of different geographical zones within its ambit. The global geography of capitalism enables this accumulation by extra-economic means through a myriad of legal and extra-legal regimes that range from global to local, and from formal to customary. These insights highlight that primitive accumulation does not lead to complete proletarianization and that non-proletarian and semi-proletarian labor remains integral to capitalism.
The enduring nature of accumulation by dispossession can be seen in the various forms of social capital that are required by capital but not paid by it. David Harvey initially used the phrase “accumulation by dispossession” to signify that global primitive accumulation is an enduring “spacio-temporal fix” for cyclical crises of capital. In this global frame, accumulation by dispossession emerges as central to the exercise of colonial and imperial domination that has moved from the background to become the dominant form of accumulation in the current neoliberal era. The entire panoply of forms of value extraction by means other than commodified or “free” wage labor makes for accumulation by dispossession.
Examples drawn from various contexts should help us appreciate this enduring phenomenon. Publically funded infrastructure, subsidies for research and development, public education, and public health are canonical instances of non-market processes that sustain the market. Gendered and often racialized household labor, both productive and reproductive, is another pervasive field of such appropriation. The history of agricultural labor in California, saturated by the instrumental use of race, class, and nationality in immigration and land-ownership laws that consolidated agro-capital, is also a story of accumulation by dispossession. Finally, trade regimes that entail “neoliberal rescaling of governance to escape national-scale environmental constraints,” and new appropriation of the commons for private profit whereby “the global commons are being enclosed,” are instances of accumulation by dis-possession.
One specific result of accumulation by dispossession that is central to the production of slums is the emergence of a reserve army of labor. While dispossession destroys traditional entitlements and subsistence economies and estranges direct producers from their means of labor, all those dislocated are not absorbed in the new production process. This unabsorbed labor may be “free,” but it is suspended between the shrinking subsistence economy and the volatile formal markets. This unabsorbed labor is the so-called surplus humanity and includes:
People who have lost their subsistence outside the cash economy . . . [who] are neither members of the economy, nor are they capable of living, feeling and acting as they did before they lost the support of a moral economy of subsistence. The new category of economic cripples, thus defined, may in fact survive, but they do not fully partake of the characteristics of homo economicus . . . any choice between alternative satisfactions, which is implied in the concept of economic need, is ruled out for them.
What do those who cannot fully partake of the characteristics of homo economicus do while suspended in the “imaginary waiting room of history?” They tend to their subsistence needs as best as they can by exchanging needs and capacities in networks of barter, petty trade, and casual employment under the radar of the law. The result is the emergence of a “need economy” — a zone outside the formal legal frames of contract and regulation, signifying “[i]nformalization within the accumulation economy.” This is the zone of the so-called informal economy. While ostensibly “‘discovered’ in Africa in the early 1970s,” the informal economy has been a perennial and enduring companion of the formal capitalist economy. Its emergence was contemporaneous with the emergence of capitalism, and it endures as capitalism persists. This is the context of the emergence of a reserve army of labor–populations separated from their non-capitalist means of subsistence but not integrated into the productive circuits of wage labor on a stable basis. The reserve army
arises out of the very nature of capitalist accumulation, and the surplus population that constitutes the reserve army resides within rather than outside the domain of the capitalist mode of production. Unemployment and pauperism is the mirror image of employment . . . — an appendage that is brought into being and reproduced by the capitalist mode of production itself.
Economists recognize that some measure of unemployment plays a crucial role in a market economy. They speak of the “natural rate” of unemployment, and its offspring–the non-accelerating inflation rate of unemployment,” and the “labor force reserve.” The reserve army of labor helps to contain significant wage increases and corresponding decline of profits. This dovetails with disciplinary uses of the poor and the underclass in the market system. Formation of the reserve army is often augmented by regional inequalities, racial divides and rural-urban migration. Economists of all stripes recognize that the question of employment is not simply a matter of a “free” labor market, and that public policy plays a critical role in calibrating and managing unemployment. Fiscal and monetary policies are the primary instruments of this calibration. Such instrumental use of policy does not mean that concessions won by the working classes are not the results of their struggles. For example, Keynesian welfare systems like the New Deal in the United States were a response to the endemic crises of capitalism and popular struggles for security of employment and a better quality of life. As Polanyi eloquently put it: “Laissez-faire was planned; planning was not.”
Since the late 1970s, a neoliberal counter-revolution has been afoot on a global scale. This has accelerated accumulation by dispossession, enlarged the surplus army of labor, and expanded the informal sectors of economies. Neoliberalism is an ensemble of interconnected ideas and practices. It rests on a theory of capitalist market fundamentalism–markets are optimal and self-regulating, and if allowed to function without restraint, they optimally serve all economic needs, efficiently utilize all resources, and generate full employment for everyone. It mandates tight fiscal and monetary policies, unbridled private property rights, unencumbered markets, and free trade. It is an ideology of the market and private interests as opposed to state intervention to safeguard collective interests. It envisages the state as limited to minimal executive and juridical functions that are necessary to secure private property rights and to support freely functioning markets. By extension, neoliberalism deems globalization of free markets as the best way to extend these benefits to the whole world.
The neoliberal project aims to unfold a new social order across the globe to reverse the setbacks that the economic power and political hegemony of the wealth-owning classes had suffered on account of Keynesian welfare in the West, socialism in Eastern Europe, and nationalism in the global South. Neoliberalism makes increasing recourse to the law to displace Keynesian welfare states through liberalization, deregulation, and privatization, and uses the discipline of expanded markets to remove barriers to accumulation that earlier democratic gains had achieved. To secure unfettered rights to private property and profits, it expands and deepens the logic of the market, collapses the distinctions between culture and economy, undermines state sovereignty and national autonomy, and links local and global political economies to facilitate transnational accumulation of capital. Through new regimes of trade, finance, and property rights, the sovereignty of states transfers to international institutions dominated by hegemonic states. The hidden hand of the market continues to work in concert with the iron fist of the state in the service of accumulation by dispossession. Explosive growth of slums and slum-dwellers is a direct result.
Neoliberalism does not displace the state as much as it reformulates it and restructures its options. The neoliberal project is to turn the “nation-state” into a “market-state,” one with the primary agenda of facilitating global capital accumulation unburdened by any legal regulations aimed at assuring the welfare of citizens. Social formations in the global South, situated in an asymmetrical relationship with global capitalism, are a particular target of this project. The neoliberal regimes, with their bedrock principles of private property rights and free trade, are a coercive mechanism to get states in the global South to adopt neoliberal economic and social policy frames conducive to global capital. The enabling mechanism is “[t]he extension of the normative force of international standards by the device of conditionality.” These regimes advance particular understandings of development and poverty that “disregard the social context of provision, the lived experiences of the poor and dismiss and/or reinforce  the way in which deprivations are constituted.” The mandate is to privatize public assets, roll back social services, and allow unbridled mobility of capital. Now “[s]trait-jacketed within the global logic of capital and market and the global regime of property rights,” states in the global South “can no longer act as developmental states and engage in management of poverty on their own.” Instead, non-state actors representing interests of global capital play an active role in designing legal orders that circumscribe state sovereignty and autonomy. Mandates of privatization make education, health, infrastructure, utilities, housing, and a range of state enterprises available for private appropriation. By its insistence on the rollback of the state, privatization becomes “[t]he [c]utting [e]dge of [a]ccumulation by [d]ispossession.”
Rapid urban growth triggered by globalized economic circuits, along with diminished state capacities and resulting civil strife, is the recipe for mushrooming slums in the global South. The unprecedented urban expansion fueled by deregulated financial capital produced another bout of “[c]reative [d]estruction” where the marginalized and underprivileged bear the brunt. Destruction of traditional rural economies, restructuring of the agricultural sector, and deeper penetration of market forces into rural societies, accelerated migration of uprooted rural farmers to urban areas. As interests of global finance capital took precedence over survival needs of the poor, the impact on the vulnerable was quick, and the “main single cause of increases in poverty and inequality during the 1980s and 1990s was the retreat of the state.” A United Nations Human Development Report found that “[a]n unprecedented number of countries saw development slide backwards in the 1990s. In forty-six countries people are poorer today than in 1990. In twenty-five countries more people go hungry today than a decade ago.” While “burdens of survival” increased for all poor, “those of women are even greater.”
Liberalization and deregulation of economies have also accelerated urban occupational marginality, with the result that those engaged in the informal sector now constitute two-fifths of the economically active population of the developing countries. “The International Labour Organization estimates that informal workers comprise over half the workforce in Latin America, over 70 per cent in Sub-Saharan Africa and over 80 per cent in India . . . .” Across the global South, mega-slums “have become a dumping ground for a surplus population working in unskilled, unprotected and low-wage informal service industries and trade.” Rural and urban areas are being sutured in production networks to accelerate siphoning of value. As outsourcing and flexible production shrink the regulated formal economy, the informal shadow economy becomes the only hope and source of livelihood for the urban poor. The explosive expansion of the unregulated informal sector, with its particular burdens on women is “a direct function of liberalization.” Over the last twenty years, both the informal economies and the number of slum-dwellers have grown exponentially. In India, as in most of the global South, significant employment growth has resulted from subcontracting at a global scale and the use of casual or self-employed workers” in the informal sector. By curtailing the already anemic role of the state in housing supply, neoliberal policies have proven to be “an inevitable recipe for the mass production of slums.” Analysts also find that “mega-slums are . . . functional to neoliberal global capitalism and a product not just of its turmoil but of its turmoil as organized by its banking and financial market system.” As the warehouses of workers of the informal sector, mega-slums facilitate “flexible production,” a hallmark of neoliberal global economy.
If accumulation through dispossession–an enduring ontological feature of capitalism–and its byproducts, the reserve army of labor and the informal sector, produce and sustain modern urban slums and slum-dwellers, what accounts for the genesis of the spatial zones of their existence?
B. Cities of Capital and Liminal Zones
The spatial production of slums is a symbiotic companion of urbanization under capitalism that has followed two models, unplanned and planned growth, with differing measures of overlap. Historically, the unplanned urban growth model unfolded parallel with industrialization and produced spaces where labor and capital came together and goods and services circulated rapidly. The process was far from orderly. The “creative destruction” of capitalism forced rapid relocations of habitation as rural populations moved to emerging centers of extraction, manufacturing, and commerce. As urban centers grew in a laissez faire regime, so did slums as the abode of the destitute and the lumpenproletariate–the surplus humanity. Dublin, Manchester, London, and Naples furnished early examples of this model of urban growth and the emergence of slums.
Planned urbanization proves particularly attractive to finance capital because this unavoidably state-sponsored and debt-financed activity gives speculative capital security of accumulation without getting directly involved with the politically volatile terrain of industrial production. The first prototype of planned urban development under capitalism was furnished by the rebuilding of Paris in the 1850s and 1860s under Georges-Eugene Haussmann. As a consequence of state-sponsored urban reconstruction, Paris emerged as a center of commerce and bourgeois life, and its emerging slums were removed from the heart of the city to its outer rim. While Haussmann’s designs “transform[ed] the capital city into the city of capital,” they also demonstrated that “the root cause of urban slumming seems to lie not in urban poverty but in urban wealth.”
The Haussmann model was replicated in the United States after World War II; first in New York under Robert Moses, and then in most metropolitan areas. While predominantly white middle classes, ensconced in debt-financed suburbia, turned to the pursuit of individual accumulation, protection of property, and so-called family values, the darker under-classes and the marginalized had to contend with removals, blighted inner-city ghettos, and inhuman public housing projects. This phase of finance capital’s deployment in urban reordering ended with the property-market crash of 1973, and bankruptcy of New York City in 1975, with global repercussions. The recipe of neoliberalism emerged, in good measure, in response to this crisis of finance capital.
The reconfigurations of Paris and New York City furnished two alternative models of urban development for the modern city across the global North: the “donut-shaped” American cities, with mostly poor people of color and immigrants “concentrated in derelict cores and inner-city,” and “European ‘saucer’ cities, with immigrant and unemployed populations marooned in high-rise housing on urban outskirts.” In the global South, urban growth has been a hybrid of both these models, turning urban real estate into a high-profit sector “where political corruption, capitalist development, and international finance [intersect].” Concentration of real-estate ownership and slum growth are the dominant result. In this progression, “[t]he word ‘infra-structure’ is the new code word for the unceremonious clearance of the fragile shelters of the poor.” As a result, fringes of mega-cities in the global South are “marked by unrelenting cycles of settlement, eviction, and resettlement.” Counterintuitive as it may be, the poor in most mega-cities of the global South have come to dread high-profile international events like conferences, festivals, and visits by dignitaries, as the attendant “clean-up” and “beautification” drives target slums and slum-dwellers. Hiding poverty behind Potemkin-like facades tends to graduate into sustained policy. Given these machinations, “[t]o date, states have been far more effective in the destruction of mass housing than in its construction.”
Parallel with the neoliberal reordering of global production and accumulation, cities are becoming a primary arena of the convergence between the domains of economy and culture. Accordingly, a confluence of reconfiguration of urban space and commodification of symbolic forms is underway. A remarkable feature of post-Fordist production systems is the increasing significance of production and consumption of cultural products. In the new economic geography of capital accumulation, Fordist mass production is increasingly moved to low wage areas, usually away from urban centers, both globally and nationally. As a result, the city becomes exclusively a zone of the service and consumption economy, and urban space itself turns into a cultural commodity to be consumed along market principles. Skills suitable for the service sector and/or the capacity to consume what this space has to offer become the only grounds for eligibility to be in the city. Deindustrialization and flight of the ineligible often leave in their wake “dead zones” that become “developers’ utopias” or “privatopias.” The ineligible who choose to stay back are eventually confined to the informal economy and deprived of secure shelter. The commodification of urban space, with culture and aesthetics at a premium, disciplines the ineligible and the dispossessed through a range of legal and architectural measures. These include “secure architecture,” “zero tolerance policing,” and “preemptive crime control,” in the neoliberal “post-justice” city.
In the midst of all of this, urban groups do manage to contrive cultural, economic, and political “spaces of escape,” or “counter spaces.” Farmers markets, alternative lifestyle enclaves, and the “underground economy” are some examples of this phenomenon that engender “new identities and practices that disturb established histories.” The resistive mode of these counter spaces can and does take overt political forms as demonstrated by the anti-WTO protests in Seattle in 1999, and replicated in many major cities around the world. This phenomenon is of particular significance for policy and engagement options related to slums and slum dwellers.
Having laid out a theoretical framework of the historical evolution of urban slums, we turn to the issue of slums and slum-dwellers in India.
III. Slums, Colonialism, and Postcoloniality
A. The Colonial Legacy
The roots of urban slums in the global South go back to colonial policies aimed at reconfiguring existing cities, or establishing new ones, in forms suitable for assertion of control and incorporation of selected sections of the native society into administrative and productive ensembles sutured with the economies of empire. In India, British colonial designs reconfigured selected urban areas to serve these ends. A defining feature of the designed colonial cities was the spatial divide between the centers of gravity of colonial presence and the native quarters. Zoning and institutionalized governance whose jurisdiction is coextensive with the territory of the city, the hallmarks of a modern city, were but rarely extended to the native quarters. Natives not recruited into colonial security, administrative, and commercial regimes, remained at or beyond the spatial and social margins of reconfigured urban areas. Colonizers’ fears of racial contamination, dilution of imagined tribal and ethnic divides, and the threat of anti-colonial solidarities resulted in restrictions on urban land ownership, pass laws, vagrancy ordinances, criminalization of urban migration, and racially zoned areas. When vigorously enforced encroachment laws targeted squatting and street vending, municipal authorities removed so-called “plague spots” from better residential and commercial areas, thereby enforcing restrictive zoning around areas where the colonizers and gradually enfranchised native elites lived. A policy of neglect toward even minimal water and sanitation needs of native neighborhoods graduated into a de facto housing policy of reliance on local elites who built overcrowded and unsanitary, but highly profitable, tenements that still house a bulk of urban dwellers. For the story of Dharavi, it is important to note that Mumbai, historically a coastal fishing village, emerged as an urban center under colonial rule; a development rooted in the colonial control of opium production and trade. The new city was carefully segregated to separate colonial masters, the native rich and emerging middle classes, and the dispossessed natives.
B. Postcolonial Developmental State
After decolonization in the global South, postcolonial elites inherited and often reinforced the physical footprints and exclusionary geographies of segregated colonial cities. They became the custodians of the colonial designs of urban exclusion and social divides, and rushed to embrace trickle-down development models that were ubiquitous in the 1950s and 1960s, whereby “the poor were denied a place in civic life and urban culture, and were seen as an impediment to progress and betterment of society.” Postcolonial growth of slums in India was first triggered by the greatest mass migration in recorded history following the partition of colonial India, which drove millions into urban slums of India. The slum-based refugees quickly became dependent on corrupt political party machines, and slum growth became notoriously synchronized with election cycles. Subsequently, the fate of the slums reflected different development models put in place and cycles of growth and stagnation.
In India, as elsewhere, economic development entails reallocation of resources and is thus a “conflictual process.” The critical role of the state in allocating and channeling resources sets the parameters of political economy. In India, the national capitalists, the rich farmers, and the bureaucracy, instituted a “one-party democracy” under the umbrella of the Congress Party, and claimed the moral high ground of national interest, modernity, equity, justice, and efficiency. Central planning and an industrial policy designed by a statistician, Prasanta Chandra Mahalanobis, aimed at rapid industrialization through import-substitution, and state control of heavy industry, banking, and infrastructure. The prime object was “to contain class conflict within manageable dimensions, [and] to control and manipulate the many dispersed power relations in society to further as best as possible the thrust towards accumulation.” The Nehruvite consensus sutured development with welfare. Poverty-alleviation was projected as the central concern of the state; indeed, its raison d’etre. A permanent bureaucracy, the inherited “steel frame” of colonial rule, was deployed to lead this project.
This was the phase when the development model of modernization by diffusion enjoyed hegemony. Even though tempered by nationalism and a commitment to a “mixed-economy,” the result was a bloated state apparatus presiding over top-down economic growth in concert with international aid agencies. The pervasive nationalist promises of the 1950s and 1960s to rebuild slums and create new housing faltered quickly, parallel with the early demise of plans to create an autonomous economy resistant to global economic pressures. While mega-projects like hydroelectric dams, atomic energy, and heavy industry thrived, education, health, and housing needs of the poor and the marginalized got short shrift. Often this de-velopment model led directly to the swelling of the ranks of the urban poor. For example, over fifty-six million, mostly “the poorest of the poor,” have been displaced in India by large hydro-electric dams. By the late 1970s, any lingering faith in the development through state-led growth was shattered by poor growth rates, only marginal decline in poverty, and barely appreciable improvements in the quality of life. As the nation-alist development project derailed and took down with it the Nehruvite consensus, populist adjustments were attempted. Gharibi hatao (eliminate poverty), the slogan fashioned by Indira Gandhi in 1975 as a rationale for declaring Emergency, was an acknowledgement that benefits of development and growth had not “trickled down” and that poverty needed to be tackled through specific, dedicated programs. Indira Gandhi’s Emer-gency symbolized “the definitive demise of the Nehruvian project . . . [and] the terminal crisis of the Nehruvian state.” However, declining growth rates, escalating fiscal crisis of the state, and fragmentation of the legitimacy of political elites ruled out the implementation of refurbished welfare policies.
As the development project faltered in India, as elsewhere in the global South, the World Bank started to question the accumulation- and growth-centric approaches to development and turned toward alleviation of poverty as a goal distinct from growth. Funding patterns were recalibrated to target agri-culture, education, infrastructure, and low-cost housing. In the new approach, the developmental state was to address poverty by direct intervention. Kalyan Sanyal argues that as a result there emerged “governmentalization” of the state in India–management of the social body through direct inter-vention of the state in terms of rationally-designed efficient technologies of administration aimed at promoting the welfare of society. This was combined with the rise of “entitlements”–a relation connecting one set of ownership to another through certain rules of legitimacy. In the sixth Five Year Plan of 1980, “a number of poverty eradication measures were intro-duced.” They proved easier to design than to implement. Sanyal claims that the blows of primitive accumulation were softened during this period by the emergence of “welfarist governmentality.” He acknowledges, however, the exponential growth of the informal sector and the fact that formal and informal economies “are locked in an asymmetric relation . . . of dominance and subordination,” which leaves the “need economy” subordinate to the “accumulation-economy.” In his rush to apply the Foucauldian construct to conditions of post-coloniality, Sanyal elides the fact that at this stage the “one-party democracy” had disintegrated, and that the collapse of the developmentalist state combined with a backlash against proposed aggressive affirmative action had produced a revolt by the middle classes and religious fundamentalism in India. The reordering of political power and deepening fiscal crisis of the state precluded any sustained attack on poverty. None of this was good news for the swelling ranks of the urban poor and their housing needs.
In India, as the postcolonial state entrenched itself, state largess focused on housing members of bureaucracies, the military, and the emerging professional class, while lip-service was paid to the needs of the marginalized. In the 1970s, for example, public authorities promised the urban poor new homes and jobs in a modern twin-city opposite the Mumbai peninsula. However, while local residents of the new site were displaced, the bulk of new housing went to civil servants and professionals. A perceptive commentary noted:
Ultimately, the grand conception of urban transformation was whittled down and domesticated to meet the immediate interests of the propertied classes. Instead of unfolding as idealistic projects of social regeneration, the town planning schemes evolved as avenues to further the interests and aspirations of the propertied and the instrument of the growing marginalization of the poor. The war against slums came dangerously close to being a battle to control the settlement and habitation of the poor, and indeed an offensive against the poor themselves.
C. The Neoliberal Reordering
In this general context, India took a turn to neoliberal restructuring in the early 1990s, ushering in an era of “liberalisation-privatisation-globalisation,” marking “a funda-mental transformation of India’s economic strategy.” It was envisaged that the economy “would be transformed in its basic orientation in a matter of a few years.” This entailed rapidly instituted deregulation, privatization, curtailment of food sub-sidies, cost recovery of public services, and liberalization of trade. Indian markets were opened up to an influx of capital, goods, and services. Foreign capital investment soared, as did the stock market and the real estate market. High, though doubtful, growth rates, based largely on performance of the service sector were sustained. A thorough empirical study finds that these rates of growth are not associated with liberalization of the domestic economy and international trade, but are a case of sustained growth that began a decade earlier. This presents “an important counterexample to the dominant orthodoxy.” In addition, accelerated remittances by skilled and unskilled labor buoyed foreign exchange reserves.
With the neoliberal turn in public policies, corporate capital assumed political and moral sway over the social formation. This hegemony was deployed to influence governmental decisions “not through electoral mobilisation of political parties and movements but largely through the bureaucratic-managerial class, the increasingly influential print and visual media, and the judiciary and other independent regulatory bodies.” The bureaucratic-managerial class now stands subordinated to corporate capital. The latter is now in a position to set the terms of the political field to which other social groups are constrained to respond. The well-heeled took the position that “our second independence had arrived: we were going to be free from a rapacious and domineering state.” The market emerged as the new messiah, and the welfare and development state went into a decisive retreat. Macroeconomic policy became obsessed with the specter of fiscal deficits. The question of poverty and the poor went through a fundamental reframing. Any expressions of the state’s concern for the poor under the “current versions are clearly framed in minimalist and palliative terms . . . politically dictated afterthoughts forced on to the agenda by electoral compulsions.”
During the same time, the number of paupers in the country increased by fifty-six million, and between 1991 and 1994 the deregulated price for food grain grew by fifty-eight percent. Real wages of the poorest quintile in Delhi fell for the first time since 1947. The assigned reasons are the increased cost and increased use of privatized services, reduced access to subsidized food supplies, and a simultaneous shift away from formal sector waged work to self-employment and casual labor in the informal sector. The impact on slum-dwellers has been particularly acute. In Bangalore, the storied capital of the neoliberal high-tech boom, slums grew twice as fast as the general population with an estimated two million poor squatting in one thousand filthy slums, and the city’s periphery became “the dumping ground for those urban residents whose labour is wanted in the urban economy, but whose visual presence should be reduced as much as possible.” Urban dwellers are not the only “beneficiaries” of the neo-liberal “Shining India.” Between 1997 and 2007, as WTO-mandated agricultural policies took root, 182,936 Indian farmers committed suicide; growing debt burden and the switch to cash-crops are cited as the primary reasons. In 2007, the Planning Commission candidly admitted that WTO “compulsions” had induced removal of tariffs and subsidies for the agriculture sector resulting in a “major crisis” in the 1990s. Indeed, Bertolt Brecht had observed accurately that “famines do not simply occur; they are organised by the grain trade.”
How does neoliberalism gain legitimacy in the face of its track record? This is accomplished through “infiltration of market logic into politics,” and the deployment of “an economic logic in defining, evaluating, and protecting certain categories of subjects and not others.” In this transition, the neoliberal project is framed as “government of free individuals who are then induced to self-manage according to market principles of discipline, efficiency, and competitiveness.” Neoliberalism is about “self-responsibilization.” Responsibilities and capacities of the states, save perhaps for war and internal security, are shrunk. Historic popular expectations from the state are folded. Self-contained individuals, now “freed” from the state, are to take responsibility to provide for themselves, optimize their participation in the “free” market, and not look to the state for any assistance or protection. For the wealthy, this may lead to more wealth and consumption, but for the poor this just adds another burden, the burden of responsibility, without any change in their capacity to shoulder it. Inequality is naturalized, and the differentiated opportunities of life that come with it are deemed an inevitable part of the “free” market.
How do the Indian ruling elites square the heralded economic miracle with increased vulnerability of the vulnerable? How does neoliberalism displace historical commitments and expectations of a caring and patrimonial state, particularly when these stand enshrined in the Constitution? This is accomplished by reconfiguring the social contract between the state and the subject, by reconstituting the grounds of eligibility for full citizenship, by redrawing expectations of collective responsibility, and by changing the composition of the political power-bloc. In India, as in many other places, over the last two decades corporate capital has secured dominance of the ruling power-bloc. Representing the interests of elites and professionals of the formal economy, the reconfigured power-bloc now holds moral-political hegemony–“the capitalist class . . . has . . . acquired a position to set the terms to which other political formations can only respond.” To achieve such domination and hegemony in India, a polity that is a representative democracy and has a historical political alliance between the poor and the nationalist elite, required recalibration of the democratic process.
This recalibration entailed turning electoral representative democracy into a “free market democracy.” For example, between two and ten billion dollars were spent in the 2009 general election in India, ninety percent of independent candidates lost, and the ruling coalition won a resounding mandate to continue on the path of neoliberalism by securing thirty-seven percent of the votes cast which work out to 10.3% of the country’s population. Elections in India have been turned into “heavily-sponsored, TV-friendly spectator sports . . . [whereby] an electorate has been turned into a market, voters are seen as consumers, and democracy is being welded to the free market. Ergo: those who cannot consume do not matter.” In line with exhortations of neoliberalism, governance was increasingly turned into a matter of administration rather than politics, with a government that is run by technocrats rather than political representatives. At play here is the production of a distinction between the concept of citizens and that of populations. While the concept of citizen carried the notion of participating in sovereignty of the state, now the population is supposed to be a passive target of policies designed and implemented by government functionaries. As part of this process, an ideological reconstruction of poverty and inequality unfolded that furnishes the ethical grounds for the disavowal of the rights of the poor. The Indian judiciary played a critical role in this enterprise.
IV. “Citizens” to “Encroachers”: Public Interest and the Indian Judiciary
A. Slums, Citizens, and Human Rights
The record of the Indian judiciary regarding slums and housing needs of the urban poor is a checkered one. It demonstrates that the law is a historical force that has both emancipatory and oppressive potential. Judges play their role in cultivating the hegemony of the dominant social forces by “creating a social conformism which is useful to the ruling group’s line of development.” Judges help the law become an effective social force by cementing society and economy together and binding subordinate groups to the will of the dominant. They emerge as “organic intellectuals” by constructing social domination as an articulation of the public interest or common sense.
During the nationalist development phase, slum-dwellers, squatters, and other marginalized groups had some expectation of state protection. These expectations were grounded in an amalgamation of claims based on needs, rights of citizenship, and a recognition of the value of their participation in the economy-expectations endorsed by stated public policy and pro-nouncements of the courts. For a brief period, the courts tempered the violence of evictions and demolitions, ever-present dangers for slum-dwellers, by requiring adequate resettlement schemes. The neoliberal turn triggered a rupture, leading to a redefinition of poverty and the rights of the poor. Over the last two decades Indian courts have cast aside any considerations of humane treatment and adequate resettlement of squatters and have adopted a discourse of the illegality of slums and squatting. The link between public interest, urban development, and housing for the poor has been reconstituted by the erasure of any public responsibility for housing the urban poor.
In the landmark Pavement Dwellers Case (1985), the Supreme Court of India located the right to shelter within the ensemble of fundamental rights while allowing the state to clear streets and other urban spaces in the interest of order. It held that “no person has a right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or ear-marked for a public purpose.” However, it also re-cognized that the loss of “the pavement or the slum is to lose the job,” and because the right to livelihood is an important facet of the right to life, “the eviction of the [pavement dwellers] will lead to deprivation of their livelihood and consequently to the deprivation of life.” Significantly, the Court argued that the urban poor do not “claim the right to dwell on pavements or in slums for the purpose of pursuing any activity which is illegal, immoral or contrary to public interest. Many of them pursue occupations which are humble but honorable.” The Court also noted that it was the failure of the state to implement master plans for cities that had caused the problem in the first place. The Court approved removals on the grounds that there was no absolute prohibition on the deprivation of life or liberty as long as the procedure established by law was followed. However, it articulated empathy for slum and pavement dwellers, and a desire to minimize the harm in the process of relocation. It instructed the government to provide alternative settlement sites for slums that had existed for twenty years or more, and reminded the government of the plans for slum upgrading and low-income housing.
In another decision, announced on the same day as the Pavement Dweller’s Case, the Supreme Court mandated that alternative housing must be provided before evictions can take place, accepted a governmental assurance that “steps are being taken for the purpose of improving the slums and wherever they cannot be improved, alternative accommodation is provided to the slum-dwellers” and expressed confidence that “the govern-ment will continue to evince the same dynamic interest in the welfare of the pavement dwellers and slum-dwellers.” In 1990, the Supreme Court went a step further to state that “reasonable residence is an indispensible necessity” for human development and the fulfillment of the “right to life.” In 1996, the Court argued that the “right to life guaranteed in any civilized society implies the right to food, water, decent environment, education, medical care and shelter,” and held that Article 21 of the Indian Constitution held within its ambit the right to shelter in order to make the right to life more meaningful. The Court read the constitution in the light of all civil, political, social, and cultural rights enshrined in the Universal Declaration of Human Rights to hold that “[s]helter for a human being . . . is not a mere protection of his life and limb. It is a home where he has opportunities to grow physically, mentally, intellectually and spiritually.” In 1997, the Court defined human rights to include everyone’s “right to a standard of living adequate for the health and wellbeing of himself and his family; it includes food, clothing, housing, medical care and necessary social services.” It held that the right to life is not confined to physical existence but includes the right to live with human dignity. Other decisions continued to push the frontiers of fundamental rights to include, for example, the right to education, the right to heath and medical care, and
[t]he right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing, shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
Slum-dwellers and the marginalized had secured these protections during the boom years of public interest litigation (PIL) in India. This device initially emerged as a vehicle to protect legal rights of a “person or determinate class of persons [who] by reason of poverty, helplessness or disability or social or economic disadvantaged position [are] unable to reach the court for relief.” Dubbed “judicial activism,” and even “judicial excessivism,” PIL entailed dilution of the rules of standing, expansion of epistolary jurisdiction, and relaxation of adversarial procedural devices to provide access to those who by virtue of their “socially or economically disadvantaged position are unable to approach the court[s] for relief.” PIL opened the door for anyone to approach the highest courts in matters of public interest to “espouse the cause of the poor and oppressed (representative standing) and those wishing to enforce per-formance of public duties (citizen standing).” The Supreme Court of India saw itself as the “last resort for the oppressed and bewildered,” assuming the mantle of a “Supreme Court for India.” PIL emerged precisely at the moment of the collapse of the nationalist development project.
Progressive PIL decisions by the courts brought major changes in, among other things, the state of urban life. These actions included removal and relocation of large urban industries to outside city limits, the conversion of all public transport and private commercial transport to the use of compressed natural gas, ridding the River Ganges of effluents, and removal of garbage from the cities. The courts’ involvement extended into oversight of implementation of their directives. Encouraged by judicial pronouncements, in 1990, the Indian Law Commission recommended a new law to give statutory basis to a right of slum-dwellers to resettlement, preceding destruction of their homes. No such law was ever enacted. Similarly, an attempt to amend the Constitution to make the right to housing a fundamental right failed. Neoliberalism had arrived to change not only the rules of the game, but the game itself.
B. Encroachers in the Showcase City
PIL may well have stayed on its path, had not the global rules of the game changed so markedly with the neoliberal turn. In its new iteration, PIL was used by the courts to assume the role of policy maker and policy enforcer with the backing of the urban professional-managerial classes, who, under the spell of ideologies of corporate capital, have turned away from the state as the primary orchestrator of change. The judiciary, the non-political branch of government, became an instrumentality to de-politicize political questions of distribution, equity, access, and opportunity.
As neoliberal deregulation of the economy, down-sizing of the public sector, and “free market” ideologies became entrenched, the courts took a dramatic turn. Judicial activism in the interest of the marginalized, seen as “chemotherapy for the carcinogenic body politic,” quickly turned lethal. With the neoliberal turn, the pace of evictions and demolitions of extra-legal settlements accelerated dramatically. Significantly, these eviction and demolitions were not mandated by any public planning directive or state action. Rather, they were ordered by the courts in response to PIL actions initiated by trade and non-poor resident welfare associations. In a dramatic switch, PIL, a weapon designed for the marginalized, was now wielded by the privileged. The privileged could use PIL because questions at hand, on their surface, involved use of public lands and did not implicate the protection of privately held property or the violation of any individual right. Evictions and demolitions were sought in public interest in urban solid waste management and the enforcement of urban master plans. Indian courts now turned PIL into a tool to monitor and direct the exercise of state power in tune with the neoliberal schema; the “free market” was to address the substantive interests of the poor and the marginalized. By a reconstruction of “public interest,” a pro-cess of “dispossession by law” at the service of accumulation by dispossession was set in motion. An analyst summarized the trend:
There was a time when courts would provide relief from the harsh and arbitrary actions of the executive reflected, in say the grant [of] stay of demolition of slums on the grounds of the lack of a rehabilitation plan or the hardship of monsoons or school examinations. Today, demolitions of slums are being directed on the orders of the courts.
How did the courts accomplish this sharp turn in a very short span of time? This was accomplished by deploying the whole array of neoliberal values, priorities, and prescriptions related to urban policy. Having mandated resettlement and alternate housing for those evicted in earlier decisions, when again faced with the question the Supreme Court articulated a newfound interest in fiscal responsibility of the state, and linked it with implied irresponsibility of the urban poor. In 1993, the Supreme Court expressed a concern that “the public exchequer has to be burdened with crores [tens of millions] of rupees for providing alternative accommodation to [those] who are trespassers on public land,” and directed that where resettlement was done, the resettled should not be given new land on leasehold, but on license. The short rope of a revocable license would keep the “irresponsible” disciplined and controlled.
The next step was to braid fiscal responsibility with a desire for a clean city, and graduate the “irresponsibility” of the poor into criminality. In 1996, the Supreme Court ordered that hazardous industries be moved outside the city limits and that cities be cleaned up. The Delhi High Court was quick to fall in line and ordered eviction of all squatters in Delhi because it “is a show window to the world of our culture, heritage, traditions and way of life. It cannot be allowed to degenerate and decay.” The Supreme Court picked up the pace in 2000, bemoaning that while Delhi was a “showcase of the country,” yet “no effective initiative of any kind” had been taken for “cleaning up the city.” The Court characterized slums as “large areas of public land . . .usurped for private use free of cost,” and a plan to provide the free land for resettlement was rejected as “a proposal which attracts more land grabbers. Rewarding an encroacher on public land with an alternative free site is like giving a reward to a pickpocket.” Giving garbage priority over the destitute, the Court, while castigating provision of adequate housing for the poor, mandated that public land be provided free of cost for garbage disposal. In holding slums responsible for the solid waste problem, the Court completely ignored the fact that per capita solid waste generation in Delhi runs along class lines. For good measure, the Court retreated from the supervisory role in urban affairs that it had aggressively assumed in the earlier phase. The solid waste management rules adopted in response to the Court’s direction, while providing opportunities for private companies and incinerators, dealt a blow to the related informal sector. In Delhi there are an estimated one million waste pickers, of which ninety-four percent belong to “backward and tribal castes,” and an estimated fifty thousand are children. The livelihoods of these workers, who provide “an unacknowledged subsidy to the waste producer, the consumer goods and packaging industry, and the legal waste owner–the municipal body” — was severely impacted. In tune with the rapidly unfolding, “decisive embourgeoisement of the Indian city,” a gentrified city, one that was pleasing to the eye with no garbage or slum-dwellers in sight, now stood as the judicially endorsed image of urban development.
Having removed “pickpockets,” the Supreme Court now put some content in the “show window to the world of our culture, heritage, traditions and way of life.” It condoned the construction of the Akshardham religious theme park in Delhi on the Yamuna River floodplain that encroached on an area designated in the city’s master plan as an ecological zone. In 2009, the Court cited this decision while approving the construction of Commonwealth Games Village adjacent to the Akshardham Temple, which the Delhi High Court had found “would affect ecological integrity of the ‘riverbed’ besides causing irreversible damage to the ‘flood plain.”’ Coincidently, fire “broke out” in the slums adjoining the construction site gutting seven shanty clusters, further clearing the grounds to facilitate global solidarity through the sports festival.
Responsibilities of the state and fundamental rights brought to light only a few years ago remained to be dealt with. In 2002, the Delhi High Court struck down a resettlement policy for squatters, and directed that they be removed expeditiously and that no alternative sites needed to be provided for removal of those squatting on public land. While recognizing the “duty of the Government authorities to provide shelter to the under-privileged,” it argued that the failure to do so does not mean that the state should be required to take up an “arbitrary system of providing alternative sites and land to encroachers on public land.” The judicially recognized fundamental right to adequate housing evaporated into thin air. Now the Court told squatters facing imminent removal: “[I]f you are occupying illegal land, you have no legal right, what to talk of fundamental right, to stay there a minute longer.” The specter of anarchy and breakdown of order was raised to deny any relief to squatters: “If encroachments on public land are to be allowed, there will be anarchy.”
To guard against the specter of anarchy, the courts started to cast a shadow on citizenship rights of the urban poor and slum-dwellers. Two classes of citizens emerged–those rightfully entitled to protections of the law, and those who had surrendered such rights on account of being poor. Now courts distinguished between slum-dwellers who were designated “unscrupulous citizens,” and the “honest citizens who have to pay for land or a flat.” And, of course, finance capital and developers were to be given a complete run of the field. In 2006, the Delhi High Court, while refusing to stop slum-demolitions without any alternative site for resettlement, argued that the land had “other uses that cannot be denied,” and expressed the frustration that the more extra-legal settlers are removed, the “more they come.” Deploying a discourse of epidemics and pathology to characterize squatters and slum-dwellers, the Court argued that “their” numbers were “growing and growing,” and hence urgent steps must be taken to “deal with the problem.” The ultimate prescription was rather simple: “If they cannot afford to live in Delhi, let them not come to Delhi.”
Then there are those who can “afford” it all and merit deference by the law and the courts. In the middle of demolition and clean-up drives, the Supreme Court allowed the construction of a shopping mall, which was being built illegally, to continue. The rationale for disparate treatment of corporate capital was articulated:
Had such parties inkling of an idea that such clearances were not obtained by DDA [the builders], they would not have invested such huge sums of money. The stand that wherever constructions have been made unauthorizedly [sic] demolition is the only option cannot apply to the present cases . . . [especially] when they . . . are corporate bodies and institutions and the question of their having indulged in any malpractices in getting the approval or sanction does not arise.
The Supreme Court also used the “huge sums of money” rationale in the Vedanta Group Case, where bauxite mining operations in Niyamgiri, Orissa, an environmentally fragile area home to indigenous tribal groups, were approved despite multiple irregularities and strong objections of residents of the area.
Emboldened by this judicial posture, the Delhi Laws (Special Provisions) Act 2006 was adopted, which provides for demolition of unauthorized structures, “whether in pursuance of Court orders or otherwise.” This Act gave license for the removal of slums where “clearance of land is required for specific public projects,” and “the Central Government may, from time to time, issue such directions to the local authorities as it may deem fit, for giving effect to the provisions of this Act and it shall be the duty of the local authorities to comply with such directions.” The end result of judicial, legislative, and executive actions is increased “segregation of economic classes” in Delhi. A “develop-ment pornography” has flourished where slum-dwellers and squatters are held responsible for “pressure on civic amenities, crime, social imbalances, economic exploitation, unplanned growth, deterioration of city beautification, culture, environmental setback to city development in a planned manner etc.” Abdication of public responsibility for housing today stands enshrined in the Delhi Master Plan 2021, which envisages private developers catering to the housing needs of the “urban poor and the economically weaker sections in the form of houses of two rooms or less.” The turn from a welfare state to coercive facilitator of capital accumulation stands completed. Slums and slum-dwellers were left at the turn, with profound implications for the place and role of the law.
The neoliberal transition did not only shape judicial philosophy of the Indian high courts regarding the questions of poverty and shelter, it also appears to have compromised the integrity of the judges. This is put into sharp relief by the still-unfolding corruption and conflict of interest scandal that erupted in 2007, and centered on Y. K. Sabharwal, Chief Justice of the Indian Supreme Court from 2000-2007. Chief Justice Sabharwal took the lead role in the Supreme Court’s denial to provide any relief against demolition and sealing of thousands of “illegal” commercial units operating in areas reserved for residential use by Delhi’s city plans. The sealing impacted thousands of peoples’ lives, and violent protest erupted. A bench headed by Chief Justice Sabharwal insisted that the sealing continue. Within months of his retirement, an investigative report was published detailing that two sons of the Chief Justice, who ran three companies from their father’s house, made millions as a result of the sealing drive that forced scores of businesses to move to shopping malls and commercial complexes in which the sons had financial interests. Corporate developers had rushed into partnerships with the sons as the sealing drive gathered speed. While the Chief Justice suffered some embarrassment, the four journalists who published the account were found guilty of criminal contempt of court by the Delhi High Court. This is not the only scandal to implicate India’s high courts.
The Supreme Court of India had long recognized that, “it is an accepted fact of constitutional interpretation that the content of justiciability changes according to how the Judge’s value preferences respond to the multi-dimensional problems of the day.” Indeed, the Court deemed “inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part” in their decision-making. As for the “social philosophy” and “value preferences” of the judges, it has been argued that their shared class affiliation and residing in Delhi makes them sympathetic to the middle class sensibilities about urban issues. This affiliation and sympathy makes for not only substantive outcomes of these cases but also the modes of resolving them that signal a new modality of functioning of the state, whereby policy making increasingly becomes the preserve of professional and technocrats immune from political control. In the Solid Waste Management Case, the Court was quick to set up a committee of experts to design rules and guidelines for waste management. This committee, like others the Court had set up for similar issues, for example, in the Delhi Pollution Case, consisted of technocrats, bureaucrats, and repre-sentatives of NGOs, without any mechanism to represent the interests of those who would be impacted by the decisions–the squatters and slum-dwellers. The process was not “structured to be participative” and was “neither consultative nor democratic.”
Activists note the “technology focus” of the courts’ agenda and that the solutions devised and recommended were driven by a priority for “leaner municipalities and greater efficiency.” Decisions about whom to consult were “ad hoc and discretionary . . . . Not all stake holders were identified and consulted, and no avenues for wider public consultation were explored.” The non-participatory process resulted in the absence of equity, fairness, and justice. In its new guise, PIL was unhinged from citizen mobilization and yoked with the interests of those with social power. A device fashioned to give access to the marginalized, now became a “tremendous practical hurdle limiting the access of the poor to the Court, and therefore restricting the range of views before the Court.” The well-heeled groups are using “their leverage with the Court” to ensure conversion of “one strain of opinion into policy, while annihilating all others.” Such machinations are dictated by the neo-liberalism whereby “in the current period, legitimate human rights can be defined only as that set of rights that require government abstention from acts that violate the individual’s freedom to innovate and to invest time, capital, and resources in processes of production and exchange.” For example, in Mumbai, an emerging middle class has teamed up with property developers and select bureaucrats and politicians to create a “powerful neoliberal lobby [of] . . . building boomers.” The emergence of the “upwardly mobile middle and elite class . . . [with an] anti-slum agenda is . . . one of the most significant changes in the Indian urban landscape.”
With these neoliberal judicial pronouncements, extra-legality stands bifurcated: that of the “unscrupulous,” “pickpockets,” and “encroachers” and that of “honest citizens;” that of “who cannot afford to live in Delhi” and that of those with “huge sums of money.” Law is supposed to discipline the extra-legality of the first set, while not even raising “the question” about the extra-legality of the latter. On the grounds of this divide, sovereignty emerges as a decision on the exception–setting up zones beyond the reach of the law. This divide implicates the very concept of citizenship by reconstituting the grounds of recognition of a citizen. The characterizations deployed by the courts may well be essentialist categories reinforcing stereotypes, but “cat-egories . . . are not meant to describe the world accurately but to organize and classify it symbolically.” The language about slum and pavement dwellers that took hold of Indian judicial pronouncements since the 1990s, is that of illegality. The courts appear mindful that in a constitutional liberal republic “in order, ethically, to justify denying a national citizen his text-based rights, it becomes necessary to make the informal settler into an ‘improper’ citizen.” The courts have done just that by characterizing slum and pavement dwellers as dishonest, unscrupulous, polluters, and predatory encroachers. Rendered an “improper citizen,” the “encroacher” can now be denied the protections of rights of citizenship. The political economy of slum production stands erased, the slum and the slum-dweller emerge as a space and a body without history, and responsibilities of the state stand vitiated. This is the legacy of neoliberalism in India.
Is there a way out for urban slums and slum-dwellers? We turn now to examine the prescriptions that hold the field.
A. Slums and Remedial Prescriptions
By the 1970s it was apparent that in the global South, even in the face of persistent urban unemployment, rural-urban migration was accelerating and so was slum growth. The urban bias of development plans, deeper penetration of the markets into rural areas, restructuring of the agricultural sector by WTO trade regimes, and increased capital-intensive nature of agricultural inputs combined to dispossess and uproot increasing numbers of rural farmers. Actual and perceived wage differentials lure rural workers to urban centers, where they cannot all be absorbed in the sector with a “politically determined wage that is substantially higher than . . . [that of] the agricultural sector.” Consequently, increasing numbers of the urban poor joined the informal sector set apart from the formal labor market, characterized by formal contracts and statutory regulations. In little time it was recognized that:
[T]he informal sector now stands out ‘as a potential provider of employment and incomes to millions of people who would otherwise lack the means of survival’ or ‘as a breeding ground for entrepreneurship on a mass scale’ . . . . [T]he informal sector can significantly improve itself, practically in each aspect of its functioning, if only the past policy biases, under which it is denied access to the advantages (e.g., availability of credit, foreign exchange, and tax concessions) offered to the formal sector, are removed.
Divergent views about the nature of the informal sector fall into three main schools of thought: the dualist school, the legalist school, and the structural school. The dualist and legalist schools furnish the scaffoldings of mainstream prescriptions for the informal sector. Assumptions drawn from the Fordist era in the global North view the informal sector “as a waiting room, or temporary transit zone: newcomers could find their feet there and learn the ways of the urban labour market.” In the meantime, abysmal wages in the informal sector are expected to be mitigated by traditional support networks. The informal sector, however, grew exponentially as neoliberal globalization gathered speed with flexible production, outsourcing, fiscal austerity, and structural adjustment of economies. While the Wall Street Journal expected the informal sector to serve as “one of the last safe havens . . . a critical safety net as the economic crisis spreads,” a detailed study finds that “incomes have declined, days of work available decreased, prices have fallen and livelihoods disappeared.”
World Bank prescriptions play a defining role in shaping the policies of governments, other development agencies, and technocratic consultants. The new orthodoxy in urban policy speaks of improving rather than replacing slums. The prescription offered for housing needs of the poor is “self-help” in combination with privatization of housing supply across the board. The populist and seemingly benign mantra of “helping-the-poor-to-help-themselves” furnishes a smokescreen for the abandonment of the obligation of the states to relieve poverty and homelessness, and turns attention away from structural changes at the state and global levels necessary for sustainable urban and housing policies that may ensure secure housing with dignity for all. Slogans like “people’s participation” become thinly disguised euphemisms for the abdication by the state of its fundamental responsibilities toward its citizens. While some have demonstrated that “self-housing” is a myth as far as paid artisans and skilled labor is involved, others have documented that due to “cost-recovery” provisions of World Bank lending for low-income housing, the bottom thirty to sixty percent of the population was unable to meet the financial obligations of such loans. ILO’s experts concluded that the World Bank’s slum upgrading had failed to have any substantial impact.
The “self-help” prescription is complemented by the World Bank’s calls for a “market-enabling” strategy: curtail direct public intervention in housing and lift restraints from private land and housing market to let commodity circulation penetrate into lower-income groups. The prescription has simply not worked. Experts conclude that
the market-enabling approach neglects urban poor because it overemphasizes the formal market process to the detriment of other existing modes of provision, it lacks specific consideration of informal markets and their particular requirements and it fails to consider who benefits from the increased market efficiency.
The market-enabling approach is inappropriate for housing needs of the urban poor in the global South because formal markets do not respond adequately to rapid urban growth, poverty, chaotic economic conditions, and the deficiencies of infrastructure and services. More often the result is excessive speculation and monopoly behavior for maximizing profits, which drive up land and housing prices without significant access to mortgage or building finance by low-income groups. One affected resident asks: “Whose problem does it solve?”
At this juncture the myth of the informal worker as entrepreneur was born. This was also the point of entry of the legalist school which viewed the informal sector as constituted by voluntary micro-entrepreneurs, who were a reservoir for future growth if only regulatory reforms would lower the cost of entry and operation in the formal sector. It was claimed that those who work in the informal sector do so “because they choose to be self-employed, using skills acquired in the formal sector to establish themselves as independent producers or traders.” The premise is that they are there “not because they were redundant to the formal sector but because they chose to be self-employed.” However, the reality is that far from choosing to do so, those in the informal sector are shut out or ejected from the formal sectors though a combination of global, national, and local impacts of neoliberal structuring of public policies and the introduction of “flexible production,” whereby capital seeks to engage labor located outside the regimes of formal contract, labor rights, and public regulation. The result is “immiserisation of the laboring poor.”
Given the rising value of increasingly scarce land in and around urban areas, squatting usually operates through an invisible and informal real estate market. Calling informal subdivision settlements “extra legal rather than illegal,” analysts point out that often those shut out of the formal housing market buy lots from entrepreneurs who acquire tracts of undeveloped land and subdivide it without conforming to any regulations, and the area is incrementally upgraded, yielding ever-increasing returns for the land owners. This model of privatized urbanization is also, in effect, the privatization of squatting. In some instances, owners of nonresidential tracts even encourage squatters to organize themselves as a land invasion in the expectation that the state may be forced to regularize the settlement and develop infrastructure. In another model, squatters purchase the “right” to dwell on state-owned land from corrupt politicians and bureaucrats. Often it is middlemen who secure possession, provide protection against eviction, and supply water and transport facilities. The result is an informal extra-legal economy and the commercialization of slums.
The heralded guru of the legalist school, Hernando de Soto, posits that the solution for cities of the global South is the granting of property rights to slum-dwellers, which will turn their extralegal holdings into liquid capital thus alleviating the need for external capital investments for job creation. He asserts that “trillions of dollars, [are] ready to be put to use if only the mystery of how assets are transformed into live capital can be unraveled.” Citing the failures of the legal system in Peru, de Soto recommends legalization of extralegal landholdings coupled with deregularization of the economy including housing. Contra to de Soto’s prescription about the injection of the law into the informal sector, the informal and extra-legal sector is not separate and apart from the formal and legal one. It is produced by operations of the market and the state that have the “power to determine . . . what is informal and what is not, and to determine what forms of informality will thrive and which will disappear.”
De Soto’s claim that the global South is “exactly where Europe, Japan, and the United States were a couple of hundred years ago,” utterly glosses over the colonial encounter and its impact. He ignores the “process of primitive accumulation that force[s] people into the cities,” and sidesteps questions about who owns capital now, and how it is deployed. He seeks to research “folk conventions” around property rights to be incorporated into the modern property regimes. Others also celebrate the multiplicity of informal legal norms that animate property relations in extra-legal urban housing. But, all informal normative orders are not born equal. While some values and desires are inherent to a community, others are fashioned as tactical responses to threatening forces. Many customary norms in the global South emerged after initial separation of native peoples from the commons and colonial inventions of tradition. Many norms of the informal sector emerged in response to predatory capitalist markets. While signifying ingenuity and re-sistance of impacted groups, these norms presuppose hostile and overarching legal regimes that dispossess and marginalize them. We must remain mindful that colonial and postcolonial coexistence of modes of production is not a horizontal articulation of different modes. Imperatives of capitalism demarcate the conditions of possibility of non-capitalist modes. As a result, the informal sector remains “locked in an asymmetrical relation” of “subordination” to the accumulation economy. Recognition of porous legality and plurality of legal frames does not necessarily imply that resistive norms of the marginalized furnish adequate grounds for alleviation of their predicaments.
Evidence from the global South suggests that regularization of slum ownership without radical changes in larger public policies has marginal positive impact at best, and has more often aggravated the condition of slum-dwellers. In tune with de Soto, the neoliberal apothecary, the World Bank’s 2003 report prescribes private property as the answer to the land question. However, even a World Bank working paper acknowledged that “it would be dangerous to promote formal titling as the sole solution necessary to solve the problems of the urban poor . . . . [W]here the capital markets are underdeveloped and a spectrum of ownership structures exist, titling alone will not ‘unlock’ capital.” De Soto claimed that in “developing countries much of the teeming mass does not consist of oppressed legal proletarians but of oppressed extralegal small entrepreneurs.” Labeling those marooned in the informal sector “entrepreneurs,” however, does not change their condition of life. Most slum-dwellers are renters of land “owned” by powerful criminal and political interests. For such owners, regularization is a bonanza, but for tenants this often amounts to ejection from any form of housing. Tax collectors, municipal utility charges, fracturing of intra-slum solidarities and slums within slums quickly became visible as a result of commodification and real estate submarket consolidation that issues from deregulation.
A recent study that interrogates de Soto’s panacea of legalization of extra-legally occupied dwellings in the light of the experience of Bogota, finds claims about the dynamics of housing market informality and the benefits of formal title wanting. The experience of other countries and cities confirms this conclusion. A landmark study of slums points out that the de Sotoian “semi-utopian view of the informal sector, however, grows out of a nested set of epistemological fallacies.”
In tune with the recommendations of the legalist school, an adverse possession model has been attempted sporadically in some counties. In the 1990s, Peru instituted this mode through the Formalization Commission of Informal Property (COFOPRI). The model suffers from various problems. Squatters must continue to bear the costs of acquiring and occupying land that they do not own for a long time, giving rise to violence and protection rackets. This model also does not address the fact that squatter settlements are often located on marginal and ecologically vulnerable lands. Neither does it address provision of services and public health issues, or deter future squatting and continued cycles of remedial responses. It has marginal impact on wealth disparity between occupants of extra-legal settlements and legal property owners because titling, on average, increases value of untitled property by a mere 23.5%. Fearful that new owners will promptly sell their titles for profit, states often prohibit transfer of title and subdivisions for substantial periods of time or indefinitely. Finally, re-quirement of public and notorious possession encourages settlements in ecologically vulnerable areas.
Another legalization model grants titles on a case-by-case basis. This was done, for example, in Peru as a once-for-all regularization under a 1961 law, and in India and Mexico at various stages. Ruling parties generally deploy this model close to elections to gain political support and votes. The ad-hoc nature of the model and its dependence upon whims of political authorities makes this an unstable and unpredictable mode of regularization. Furthermore, it does not address issues of squatting costs, lack of services, environmental concerns, and intra-slum divides. The dominant result has been that “[s]peculative rises in the price of land and the costs imposed on residents both directly and indirectly (in the form of service charges and property taxes) lead to the displacement of the original population. Rather than increasing security of tenure, regular-ization actually diminishes it.” Indeed, regularization is often misused by landowners to their profit by using squatters for their ends. The case of Lima is illustrative:
Very often landowners and private developers have manipulated the squatters into forcing portions of the land onto the real estate market, by obtaining from the authorities some urban infrastructure for the squatters, thus enhancing the land value and opening the way for profitable housing construction. In a second phase, the squatters are expelled from the land they have occupied and forced to start all over again on the frontier of a city which has expanded as a result of their efforts.
A more productive model is the “state as developer” model, with direct state planning, intervention, and investment in “sites and services” projects. While this model was only marginally successful in Mexico and Peru, there is the relatively successful and “[o]verlooked [e]xperience in Iran.” The revolutionary government of Iran inherited exploding urban growth, concentration of land ownership, and a choke-hold of landed interests over land and housing policies. A series of laws introduced between 1979 and 1992 aimed to regulate the urban land market and urban housing with the objective of “acquisition of excess urban land above a defined limit and its direct allocation for housing [through public channels], co-operatives and the private sector.” Islamic law was deployed whereby the state could rightly acquire undeveloped land for distribution without compensation. The impact on direct land provision and the land market was dramatic. Within a ten year period 85,557 hectors of urban land was acquired by the Urban Land Organization (ULO). Seventy-seven percent of the land was allocated for housing, and the rest for commercial, industrial and public service purposes. The land reserved for commercial projects was sold and thirty percent of the profit was given to municipalities to provide services, giving priority to green spaces, schools, clinics, and health centers. Until 1985, the focus was on the public sector provision of infrastructure to new residential areas. The program was expensive and was plagued with inefficiency. In 1985, a revised plan aimed at addressing the problem ex ante. The state acquired land close to cities, laid out infrastructure–roads, electricity, and sewer systems–and allotted housing plots to applicants on a user-pay financing basis. The fees for the development were paid by future occupants either before or after occupation. By selecting land for acquisition, urban migration was steered to mid-sized cities in addition to areas around large metropoles. Cost re-coupment ratio was satisfactory, and where payments exceeded development costs, the surplus was plowed back into additional services like hospitals and schools.
In a ten-year period land was transferred to 422,864 families through direct allocation (234,000), housing cooperative societies (131,000) and public and private developers (58,000). Between 1976 and 1986, the housing stock doubled, increasing from 2,377,586 to 4,685,666. Even the World Bank was constrained to acknowledge that provision of public land had “play[ed] an important role in attracting developers to invest in low-income housing and in rental accommodations,” and that this approach “should be explored as part of a housing policy concerned particularly with provision of low-income housing.” Analysts conclude that:
Iran substantially expanded the stock of low-income urban housing . . . by directly providing land . . . effectively by-passing urban land and housing markets and their shortcomings [through policies] designed specifically to benefit a large section of low and middle-income sectors that would otherwise be excluded land and housing markets.
As practiced in Iran, the state as developer and sites and services models address the extra-legal settlement problem ex ante, and avoid social and human costs of squatting. Planned selection of settlement sites helps preclude environmentally fragile and hazardous landscapes. Provision of services before occupation avoids public health issues. Land bearing legal title enters the market through the state, thus avoiding transaction costs of regularization. Concerns remain that user-pay financing may keep such housing out of the reach of the destitute. However, if the state were to subsidize the cost of occupation for the poor, this model can become an effective means of redistributing wealth and directing public resources to alleviate a critical social problem, i.e., housing for the urban poor. Sustained governmental foresight and a political commitment toward the urban poor are the key ingredients of this model.
The experience of Iran substantiates that housing for the urban poor is primarily a political problem, one that requires political will that issues from composition of the power-bloc. Note that the primary social base of political support for the revolutionary regime in Iran was provided by the urban poor and the lower middle classes. Due to the early legitimacy of the revolution, any backlash from other interest groups toward the policy to house the urban poor was not powerful enough to derail the program. As merchant groups gained ascendency within the power-bloc in the 1990s Iran yielded to the pressures and temptations of neoliberal restructuring, and land and housing policy were increasingly influenced by supply-side policies. The negative impact was quick. The housing situation in urban areas worsened progressively, going through several cycles of boom and bust. Housing prices escalated and, feeling political pressure, the government was recently forced to announce new measures of land allocation and subsidized housing in new housing projects. Even with its substantial success, the challenge remains whether the “state as developer” model can be replicated in the global South beyond Iran. All social formations of the global South are not commensurable; certainly not in regard to their power-blocs. What is needed is an overarching conceptual principle that can guide suitable remedial strategies in diverse settings.
B. Toward the Right to the City
Injecting extreme competition in the already impoverished and exploitative informal sector as prescribed by neoliberalism is to “simply grease the skids to a Hobbesian hell.” A promising path out of this Hobbesian hell may be the incipient right to the city. The concept, first introduced by Henry Lefebvre in the late 1960s, and characterized as “one of the most precious yet most neglected of our human rights,” is playing an influential role in urban politics in Latin America and international efforts to develop a “World Charter on the Right to the City.”
Lefebvre saw the right to the city not as a natural or contractual right, but as one that issues from the entitlement to urban space “of the whole society and firstly of all those who inhabit.” Lefebvre’s point of departure is that while the scope of human rights has expanded as a result of social movements and political struggles, the rights of the citizen largely remain the same as stipulated in the Declaration of the Rights of Man and Citizens of 1789. Therefore, an expansion of the rights of the citizen is needed to address new relations between individuals and society in modern urban life. He linked reconfiguration of citizenship rights with democratic governance of cities, the primary zone of modern collective life. Rather than rejecting classic liberal political rights, Lefebvre aimed to build upon them to include the right to information, the right to culture, the right to identity in difference and in equality, the right of democratic control of the economy and politics, the right to public services, and above all, the right to the city. The right to the city consists of the right of all city-dwellers to fully enjoy urban life with all its services and advantages–the right to habitation, as well as playing a direct role in the management of cities. This calls for an emphasis on use value of all things urban in order to redress the social imbalances that issue from excessive emphasis on exchange value, the hallmark of the production of urban space under capitalism. Besides a claim upon adequate urban services and management, it includes full use of space by those who inhabit the city, including the right against segregation and expulsion from social life. Most importantly, it seeks an active participatory role in “all circuits of decision-making leading to the control and development of the organization of social space,” in order to resist the control of space by the state and capital.
The right to the city can compliment constructs of political citizenship with a broader notion of “urban citizenship.” It signals legitimization of collective struggles to transform the “power relations that underlie the production of space, fundamentally shifting control away from capital and the state and toward urban inhabitants.” It not only expands the eligibilities of those traditionally considered members of the political community, i.e., citizens, but could bring refugees, asylum seekers, and the undocumented within the zone of eligibilities and entitlements on account of their spatial presence. Of course, we have to be mindful that “the number of rightless peoples also grows even as human rights norms and standards proliferate.” We also have to note the critique of the classic discourse of rights for its formalism, questionable claims of universality, limited scope, and failures in implementation. Furthermore, framing all issues and strategies in the language of rights may itself impede their realization. The right to the city is amenable to readings that may restrict it and simply add to the portfolio of individual liberties best suited for the interests of the powerful political and economic elites. If it is to challenge hegemonic liberal political and neoliberal market constructs, this right has to be envisaged as more than an individual liberty to access urban resources, and seen instead as a collective right to reshape the process of urbanization. The right would be meaningful only if it entails democratic control over deployment of surplus, and management of urban development. It is imperative that counter-hegemonic social movements remain the drivers of this right which is essentially a solidarity right. Only then will it become an effective instrument to address the inequities of urban life. David Harvey has called for the adoption of the right to the city both as a slogan and a political project because
it focuses on the question of who commands the necessary connection between urbanization and surplus production and use. The democratization of that right, and the construction of a broad social movement to enforce its will is imperative if the dispossessed are to take back the control which they have for so long been denied, and if they are to institute new modes of urbanization.
A productive model is furnished by the struggle for the right to the city as it has unfolded in Brazil. It rests on the principle that regulation of urban development is a public matter that cannot be reduced to either individual or state interests. The right is then seen as an ensemble of rights of all residents of the city–the right to housing, the right to urban planning, the right to environmental preservation, the right to capture surplus value, and the right to regularize informal settlements. A landmark in this context was the enactment of Federal Law No. 10.257, entitled “City Statute,” in Brazil on July 10, 2001. The statute aims to regulate the framework of urban policy introduced by the 1988 Federal Constitution that explicitly recognized a collective right to the city, affirmed a central role for local governments, and declared that representative democracy be reconciled with participatory political process. The City Statute provides the frame of interpretation of the constitutional principle of the social function of urban property and the city, lays down a regulatory framework for the construction and financing of urban development by municipalities, prescribes the design of democratic management of cities, and identifies legal modalities for comprehensive regularization of informal settle-ments in private and public urban areas.
Another promising development is the proposal for a “World Charter for Human Rights in Cities,” first proposed at the VI Brazilian Conference on Human Rights in 2001. It was inspired generally by the international instruments on civil, political, social, cultural, and environmental rights, and in particular by the European Charter for Safeguarding of Human Rights in the City, and by the Treaty for Democratic, Equitable and Sustainable Cities, Towns and Villages. The World Social Forum, the umbrella “movement of movements,” has been the primary vehicle to elaborate the World Charter and to design strategies for its adoption by the United Nations. In 2005, UN-HABITAT and UNESCO launched a joint initiative entitled “Urban Policies and the Right to the City” aimed at social mobilization for the World Charter. The objective of the World Charter is to recognize and to establish legal mechanisms to enforce the right to the city in its social, economic, cultural, and political dimensions. It seeks to redesign international norms of economic, social, cultural, and environmental rights in a more clearly defined framework of the right to the city. If approved by the United Nations, the World Charter would confer legitimacy to social movements of the urban poor and slum-dwellers. It would help develop international legal norms for human rights to guide public, community, and private agents to ensure equitable and sustainable distribution and use of urban land and resources. In this role, it could serve as a useful instrument in the struggle of slum-dwellers and the urban poor. The right to the city can facilitate recovering the original meaning of the city–the body of citizens, and the community. We have to recognize, however, that general declarations of rights are important but not sufficient. Effective social movements and locus standi for individuals and social movements to enforce those rights through the courts are essential for the realization of such a right. Even the enforcement of this right at the level of the cities may remain largely symbolic if international and national economic and urban policies remain imprisoned in the straitjacket of the global rule of capital, particularly its neoliberal reincarnation.
The persistence and growth of slums is perhaps the most eloquent testimony of the failures of the capitalist world order. Machinations of global capital, managerial designs of global management, national policies imprisoned in bankrupt development models, and the absence of comprehensive social movements remain hurdles in any road to dignity and full participation in political and socio-economic life for marginalized populations. It is a particular burden of scholars to devise strategies to reverse this state of affairs. Correct diagnosis remains indispensible to productive prescriptions. The primary intellectual challenge is to cut through the ideological fog that envelops the operations and effects of socio-economic orders procreated by the rule of unbridled capital accumulation. We have to contest and interrogate propositions that phenomena like slums, urban poverty, and human misery are accidental, incidental, or a mandate of the natural scheme of things. The connection between accelerating urban poverty in the global South and global accumulation of capital has to be clearly understood, along with the supporting roles of global managers, national policy makers, and local administrators. Legal scholars face a particular challenge to interrogate the role of law in this context. Our theories of citizenship, class, identity formation, and social change must take into account the rhythms of lived experiences of the urban poor. Only then can transformative prescriptive designs be imagined and implemented. To address this historic agenda, we will do well to learn from and build upon the daily struggles and resistive ingenuities of slum-dwellers. In an evocative scene of Slumdog Millionaire, while torturing the slum-dweller protagonist, a police officer inquires: “What can a slumdog possibly know?” The protagonist responds: “The answers!”
The attributes of liminality or liminal personae (‘threshold people’) are necessarily ambiguous, since this condition and these persons elude or slip through the network of classifications that normally locate states and positions in cultural space. Liminal entities are neither here nor there; they are betwixt and between the positions assigned and arrayed by law, custom, convention, and ceremonial.
Victor Turner, The Ritual Process: Structure and Anti-Structure 95 (1969).
[N]either capitalism as a whole nor the capital-labor relationship on which its contradictory and conflictual dynamic depends can be reproduced purely through market relations. Both require supplementary modes of reproduction, regulation and governance[,] including those provided in part through the operations of the state.
Bob Jessop, The Future of the Capitalist State 11 (2002).
[B]y using the term “natural” rate of unemployment, I do not mean to suggest that it is immutable and unchangeable. On the contrary, many of the market characteristics that determine its level are man-made and policy-made. In the United States, for example, legal minimum wage rates, the Walsh-Healy and Davis-Bocon Acts, and the strength of labor unions all make the natural rate of unemployment higher than it would otherwise be.
Milton Friedman, The Role of Monetary Policy, 58 Am. Econ. Rev. 7, 9 (1968). In the absence of state intervention, employment depended on the confidence of the capital, which gave the latter
a powerful indirect control over Government policy: everything which may shake the state of confidence must be carefully avoided because it would cause an economic crisis. But once the Government learns the trick of increasing employment by its own purchases, this powerful controlling device loses its effectiveness.
Kalecki, supra note 121, at 139.
posed some serious challenges to the prevalent Bank ideology. The result was a somewhat ambiguous pastiche of concepts and approaches….The result…was a rather tenuous gluing together of some markedly divergent approaches.Poverty-oriented emphasis sometimes seemed to have been pasted on the prevalent ideology, without, however, altering its fundamental slant.
Id. at 75.
Establishment or creating of slums, it seems, appears to be good business and is well organized. The number of slums has multiplied in the last few years by geometrical proportion. Large areas of public land, in this way, are usurped for private use free of cost. It is difficult to believe that this can happen in the capital of the country without passive or active connivance of the land owning agencies and/or the municipal authorities. The promise of free land, at the taxpayers cost, in place of a jhuggi [shack], is a proposal which attracts more land grabbers…The department of slum clearance does not seem to have cleared any slums despite its being in existence for decades. In fact more and more slums are coming into existence. Instead of “Slum Clearance” there is “Slum Creation” in Delhi. This in turn gives rise to domestic waste being strewn on open land in and around the slums. This can best be controlled at least, in the first instance, by preventing the growth of slums. The authorities must realize that there is a limit to which the population of a city can be increased, without enlarging its size. In other words the density of population per square kilometer cannot be allowed to increase beyond the sustainable limit. Creation of slums resulting in increase in density has to be prevented. What the slum clearance department has to show, however, does not seem to be visible. It is the garbage and solid waste generated by these slums which require to be dealt with most expeditiously and on the basis of priority.
Almitra Patel, 2 S.C.C. at 3-4 (emphasis added).
We believe it is not for this Court to direct as to how the municipal authorities should carry out their functions and resolve difficulties in regard to the management of solid waste. The Court, in fact, is ill-equipped to do so. Without doubt the governmental agencies including the local authorities have all the powers of the State to take action and ensure that the city remains clean. They only have to wake up and act.
Patel v. Union of India, A.I.R. 2000 S.C. 1629, 1633 (India).